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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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The Local Government Act 1974 ( LGA 1974) The Local Government Act 1974 ( LGA 1974) created a Commissioner for local administration, commonly referred to as the LGO, and that term is used throughout this Practice Note. This Practice Note outlines the LGO’s statutory functions, its jurisdiction—including matters it cannot investigate—together with its powers and procedures. It should be read in conjunction with Practice Notes: Maladministration—complaints and Maladministration—investigations and reports. The LGO’s mission statement is ‘ Remedy injustice—help improve local services.’ The LGO’s strategic objectives are to: ensure the service is straightforward to find and simple to use deliver redress for injustice through impartial, rigorous and proportionate investigations apply learning from complaints to help improve local services be accountable to the public and use our resources efficiently The LGO must prepare an annual report on the discharge of its functions in relation to local authorities and present it to those...
This year’s annual summary highlights many of 2017’s major developments and also looks ahead to what 2018 may well bring. It covers the social housing and governance fallout from the Grenfell Tower disaster, alongside key updates in education, children’s social care, health care and related licensing. There is also news on Lexis Nexis®’s content, featuring notable developments from the past year and outlining what is planned for the next 12 months. Reviewing 2017 Social Housing/ Governance What happened? On 14 June 2017, Grenfell Tower in the west London Borough of Kensington and Chelsea ( RBKC) was engulfed by fire, causing the deaths of 71 people, the serious injury of many others, and leaving several hundred residents homeless. What are the key implications? Grenfell has become a defining moment in the provision of social housing and in the accountability of local authorities for the services they deliver. The...
This Practice Note sets out guidance on the idea of ‘local connection’ as contained in section 199 of the Housing Act 1996 ( HA 1996) for England and section 81 of the Housing ( Wales) Act 2014 ( H( W) A 2014) for Wales, as amended by the Homelessness Reduction Act 2017 ( HRA 2017) with effect from 3 April 2018. The concept supports local housing authorities ( LHAs) in handling housing applications by allowing referrals to other LHAs where an applicant lacks a local connection with the authority first approached. Its purpose is to avoid any single LHA being overwhelmed by applications. This Practice Note also outlines the relevant legislation and guidance in both England and Wales. Statutory guidance for England was published on 22 February 2018 to coincide with HRA 2017 coming into force on 3 April...
What is ? Local authorities ( LAs), like the wider public sector, are required to run their activities within set budgets. With spending limits broadly predetermined, they should ensure actual expenditure closely aligns with the budget. If unforeseen pressures arise that risk overspending, or, in rare cases, unlawful budget setting or unremedied General Fund deficits, LAs and their statutory proper officers are duty-bound to intervene and restore compliance. Setting the budget and putting in place robust monitoring is among the most critical financial disciplines for LAs, underpinning sound stewardship of public funds. With firm controls, the likelihood of material over or underspends should be low. Where controls are weaker, significant variances can emerge. Financial management sits at the heart of an LA’s corporate governance; it is a core responsibility for every manager, not merely a task for accountants. Accordingly, senior management and leading members across the...
When do local authorities investigate environmental offences? Environmental offences encompass a wide array of unlawful activities that impact our surroundings. Local authorities usually take the lead on investigating, enforcing and prosecuting the less serious breaches. In England and Wales, duties can overlap between local authorities, the Environment Agency ( EA), Natural England ( NE) and Natural Resources Wales ( NRW). In Scotland, investigations into environmental crime are carried out by the Scottish Environment Protection Agency ( SEPA). For guidance, see: Practice Note: Environmental prosecution and enforcement policy Practice Notes: Environment Agency—powers to investigate environmental crime; and Environment Agency ( EA)—powers of entry Practice Note: Natural England—powers to investigate environmental crime Practice Note: Natural Resources Wales—powers to investigate environmental crime Practice Note: Scottish Environment Protection Agency—powers to investigate environmental crimes Where a statute does not expressly assign...
FORTHCOMING CHANGE : On 13 October 2025, the Ministry of Housing, Communities and Local Government ( MHCLG) opened a consultation on enhancements to the Local Government Pension Scheme ( LGPS) in England and Wales. Among other measures, it sets out a reset of Fair Deal protections, bringing the scheme into line with the 2013 Fair Deal guidance and phasing out the use of ‘broadly comparable’ pension schemes for future outsourcing, except in limited exceptional cases. Rather than relying on admission bodies, a new default ‘deemed employer’ approach would allow all staff compulsorily moved under TUPE to keep uninterrupted LGPS membership, with the original Fair Deal employer remaining accountable for pensions. These safeguards would roll forward through re-tenders and later transfers, protecting access for ‘protected transferees’ and, where the employer chooses, for new starters on the contract. For members currently in broadly...
This Practice Note offers hands-on guidance for those working within a local authority in England or Wales on dealing with licensing fees and levies. Local authorities may, of course, be required to administer a wide range of licences or approvals, covering licences for the sale of alcohol and the provision of regulated entertainment, as well as taxi licences, and licences for street trading. It is not intended to give detailed advice on setting and/or recovering fees for every licensing regime; instead, it provides broad direction on the principal issues that should be taken into account. Accordingly, it is intended as a practical overview rather than a comprehensive manual for practitioners across England and Wales. Licensing fees and levies Licensing fees broadly fall into three distinct categories: fees fixed by statute, which individual authorities cannot vary fees determined locally to meet the costs of...
This Practice Note This Practice Note outlines the legal powers permitting councils to set up commissioning models for services, as well as Local Enterprise Partnerships ( LEPs). It further reviews the grounds for taking part in external arrangements, for example via Strategic Partnerships, to carry out certain functions. The Practice Note additionally addresses council powers and obligations when joining forces with neighbouring authorities through shared services arrangements; when collaborating with other public bodies, including the NHS; and where there is a statutory requirement to co-operate in delivering services. It also highlights the constraints that might arise or restrict their ability to proceed. Working alongside external organisations is not a new concept in local government. In recent years, it has become increasingly necessary for local authorities to participate in a wide variety of different partnership arrangements of various types where...
Large scale voluntary v small scale voluntary transfers Large scale voluntary transfer ( LSVT) refers to moving all, or a significant proportion, of a local housing authority’s ( LHA) dwellings to a typically newly formed private registered provider ( RP) of social housing, which is entered on and overseen by the Regulator of Social Housing ( RSH) in England. See Practice Note: Regulation of social housing in England. An LSVT ordinarily involves the disposal of 500 or more occupied and leasehold homes by the authority. An LSVT may cover the entire existing portfolio held by an LHA, or only part of it; the latter is termed a partial stock transfer by practitioners in practice. A small scale voluntary transfer ( SSVT) means transferring 499 or fewer occupied and leasehold units usually within five years or less. An LHA proposing an SSVT must broadly follow the same...
ARCHIVED: This Practice Note has been archived and is not maintained. Background Private finance initiatives ( PFIs) have allowed local authorities to form agreements with private sector partners to deliver new and/or upgraded capital assets (for example, infrastructure) together with a range of associated and complementary services. Central government departments have offered financial support towards the capital cost component of PFI schemes and projects. In December 2012 the PFI contracting programme closed and a new model of public–private partnership, termed ‘ PF2’, took its place thereafter. This note addresses PFI, with only limited mention of PF2, as housing has so far not been included within the categories of projects approved under PF2. Under housing PFI contractual arrangements, local housing authorities ( LHAs) enter into contracts with consortia of private sector companies to design, construct, improve, finance, manage and maintain the social housing stock...
This Practice Note outlines the practical issues that local authority landlords should consider when confronted with a housing disrepair claim in England. It explains the foundation for a repair claim and the practical steps to take when managing a claim, including whether the matter could be addressed through alternative dispute resolution outside the court process. It also covers the Awaab’s Law regime implied term and the new statutory time frames for local authority landlords to investigate and remedy specified emergency and HHRS hazards. The basis for a disrepair claim It is essential to understand the grounds on which a claim can be brought, together with some basic procedural points. Disrepair claims arise principally under contract and statute, and the basis of each is summarised below. Where there is a tenancy agreement, the claim will typically be for breach of contract. A copy of the tenancy...
What is a flexible tenancy? Introduced by the Localism Act 2011, a local authority may grant a flexible tenancy where: the tenant has previously lived in a council property under a family intervention, demoted or introductory tenancy prior written notice has been given confirming the tenancy will be flexible a landlord has granted a secure tenancy for a fixed term of not less than two years Once an authority has put in place a tenancy strategy or an interim policy, it may offer flexible tenancies instead of periodic secure tenancies. Each individual authority determines whether it will use flexible tenancies and in what circumstances: a flexible tenancy is a kind of secure tenancy for a fixed term of at least five years, or in exceptional cases, for a minimum of two years the principal distinction from a periodic secure tenancy is that a...
This Practice Note sets out the requirements and flags the principal matters concerning the financial statements and reporting for LAs. What is financial accounting in brief? Local authorities ( LAs) are highly complex organisations with intricate and numerous transactions that must be properly accounted for. In 2009, HM Government chose to implement International Financial Reporting Standards ( IFRS), the framework used by FTSE 350 companies and widely regarded as the ‘gold standard’. These standards are extensive, detailed and highly rules‑driven, running to well over 2,000 pages in total. In addition, LAs must also closely follow the Chartered Institute of Public Finance and Accountancy ( CIPFA) Accounting Code of Practice, updated on an annual basis each year. The Code adopts IFRS as specified, then makes changes by introducing statutory overrides and other adjustments so that the effect of IFRS accounting is not charged to the General Fund and,...
Why establish an Energy Service Company ( ESCo)? Before creating an ESCo, determine precisely what it is meant to achieve and whether a special purpose vehicle is warranted in the circumstances. For a general overview of what ESCos are, why they appeal to local authorities, and the issues that local authority ESCos have faced, see Practice Note: ESCo’s: their role in local authority projects. A local authority pursuing renewable generation—for instance, solar PV—may not require a company to do so; in many cases, constructing and operating the asset on the authority’s own balance sheet is preferable. The same applies where a local authority sells power from renewables through private wire arrangements. Of the three pillars of the energy landscape (generation, distribution and supply), supply usually presents the strongest case for a distinct legal entity. Where a local authority plans to provide heat,...
This Practice Note explores the role of an Energy Services Company ( ESCo) in local authority schemes. It outlines, in broad terms, what an ESCo is and the potential structures it might use. It also sets out the advantages for a local authority in appointing an ESCo. In addition, it addresses the reduced popularity of local authority ESCos after a number of high-profile failures in the early 2020s, together with potential explanations for those outcomes. For further detail on creating a local authority ESCo, see Practice Note: How to establish a local authority Energy Services Company. What is the ESCo model for local authority projects? There is no single, settled definition of an ESCo, and the term has no particular legal status. It has been applied to organisations involved in generating, distributing and/or supplying energy to end users, as well as those working on demand...
Council members for a principal area Local government electors within a principal area choose its council members. Non-metropolitan counties are divided into electoral divisions, while metropolitan and non-metropolitan districts are arranged into wards, each electing a specified number of councillors. The electoral arrangements for every principal council are reviewed periodically, from time to time, or when a review is requested. A separate election is held for each electoral division or ward. Councillors serve a term of four years in duration......
This Practice Note considers the fiduciary duty of confidentiality, wrongful and fraudulent trading, and the significance of managing roles within local authorities and companies. For more on local authority companies, see Practice Note: Local authority companies. For guidance on directors’ duties, see Practice Note: Duties of directors of local authority companies under CA 2006. Fiduciary duty of confidentiality What is a fiduciary relationship? A fiduciary relationship arises at common law where A and B agree that: A will act for, or for the benefit of, B in circumstances creating a relationship of trust and confidence A holds discretion or authority that affects B’s interests B, in turn, relies on A for information or advice Fiduciary duties are owed by: partners (to one another) solicitors and other professional advisers (to their clients) trustees (to...
This Practice Note offers practical guidance on the establishment and use of companies by local authorities ( LAs). It outlines the governance framework of companies and the categories of company directors. Governance structure of companies The majority of companies are incorporated by registration under the Companies Act 2006 ( CA 2006) or earlier Acts. Some companies and corporations are created by private Acts of Parliament (for example, certain port authorities and older railway and canal companies), under Royal Charters (such as older universities) or under other legislation; those bodies have distinct governance arrangements that fall outside the scope of this Practice Note. See Practice Note: Royal Charters. In summary, the governance of companies registered under CA 2006 is divided as follows: Day-to-day management of the company is entrusted to the board of directors (acting collectively), which may in turn delegate the company’s lawful powers, as well as...
Local authorities have long had the ability to levy charges and to trade, yet the legal foundation for doing so has not always been fully defined. The Local Government Act 2003 ( LGA 2003) brought in fresh provisions on charging and trading; however, grasping how and when these powers apply requires first appreciating the earlier statutory powers on which they build. Under the LGA 2003, there is a clear divide between charging (i.e. recovery of costs only) and trading (which permits an authority to earn a profit). Importantly, these new powers are disapplied wherever a specific existing power is available. Accordingly, when weighing up charging or trading, an authority’s initial step should be to confirm whether the proposal falls within any particular power. If it does not, the authority must then decide whether the proposal amounts to charging or trading......
This Practice Note briefly explores how the means test operates when an English local authority ( LA) is asked to provide financial help for social care services. The Care Act 2014 Since the welfare state emerged in the 1940s, LAs have been granted powers and placed under duties as well as responsibilities to deliver care and attention to those in need. Yet the law evolved piecemeal over time, scattered across a multitude of Acts and statutory instruments, and supplemented by numerous and extensive guidance documents. The Care Act 2014 ( CA 2014) was enacted as a single, comprehensive statute to: bring together and harmonise the existing law; reflect contemporary practice; and implement the recommendations of the Commission on the Funding of Care and Support, chaired by Andrew Dilnot in 2011. It applies to every English LA......
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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